Wiskich v Roads and Maritime Services

[2016] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wiskich v Roads and Maritime Services [2016] NSWLEC 30
Hearing dates:	1 April 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Class 3
Before:	Craig J
Decision:	(1) Being satisfied that good cause has been shown by each of the applicants in each proceeding for their failure to lodge the present objections within 90 days after receiving a compensation notice from the respondent, I determine that the Court may proceed to hear and determine their respective claims for compensation. (2) Grant leave to the applicants in each proceeding to amend their respective applications by way of objection filed on 18 December 2015 by substituting the name of the respondent as Roads and Maritime Services for Camden City Council. (3) Grant leave to the applicants to file an amended application in respect of the Schedule of Disturbances and Loss and otherwise to amend the application in accordance with the amended application annexed to the affidavit of Cherly Ann Williams affirmed 31 March 2016 at pp 36-67. (4) Orders and directions in accordance with the Short Minutes of Order initialled by me and filed with the papers. (5) Grant leave to the parties to approach the Registrar by eCourt not later than 4.30pm on Monday 4 April 2016 in order to obtain a date for a s 34 conference to be held before 29 June 2016. (6) Note the proceedings are next listed for directions on Friday 1 July 2016.
Catchwords:	PROCEDURE – application to extend time for filing of compensation objection - s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - whether applicants satisfied the Court that they had good cause for failure to lodge objection within time - whether personal hardship and difficulties obtaining information from the applicants valuation expert establishes good cause - conduct of applicants during the 90 day period - no prejudice suffered by the respondent - appropriate to allow matter to proceed to determination
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Cases Cited:	Leclercq v Essential Energy [2015] NSWLEC 50 Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU NET Pty Limited v Sydney Metro [2011] NSWLEC 19; 210 LGERA 202
Category:	Procedural and other rulings
Parties:	Proceedings 31195 of 2015 David Mario Wiskich (First Applicant) Barbara Patricia Wiskich (Second Applicant) Camden Council (Respondent)   Proceedings 31196 of 2015 David Mario Wiskich (Applicant) Camden Council (Respondent)
Representation:	Counsel: P M Lane (solicitor) (Applicants) A Van Der Ley (solicitor) (Respondent)   Solicitors: C A Williams Legal Pty Ltd (Applicants) Hunt & Hunt Lawyers (Respondent)
File Number(s):	31195 of 2015 and 31196 of 2015

EX TEMPORE Judgment

1. David Wiskich, is the applicant in proceedings 31196 of 2015. He is the owner of land known as 251 Bringelly Road, Leppington. The adjoining property, known as 243 Bringelly Road, Leppington is owned by David and Barbara Wiskich, they being the applicants in proceedings 31195 of 2015.

2. In each proceeding the respective applicants have made application to the Court pursuant to s 66(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act) to have the Court determine compensation following acquisition of an interest in their respective parcels of land. Those parcels were acquired upon publication of an Acquisition Notice in the Gazette on 17 April 2015.

3. The proceedings brought by these applicants were commenced in this Court on 18 December 2015. Before me is a notice of motion filed in each proceeding seeking a number of procedural orders, the most significant of which is an order that seeks leave to lodge the application out of time, such that the time for filing the application is extended up to and including 18 December 2016. The respondent does not oppose the making of any of the orders sought.

4. Section 66(1) of the Compensation Act provides that when an owner of land that has been acquired under the Act is dissatisfied with the determination of compensation offered on behalf of the acquiring authority, objection to that offer of compensation must be lodged with the Court within 90 days from the date of receipt of a compensation notice. The compensation notices relevant to the present proceedings, which for present purposes, are being heard together, were, in the case of David Wiskich, served on 7 September 2015 while in the case of David and Barbara Wiskich served on 11 September 2915. That had the consequence that in each case the 90 day limitation period imposed by s 66(1) expired in the case of David, on or about 6 December and in the case of David and Barbara on or about 10 December. It will be apparent that the date by which the proceedings were commenced is outside the 90 day period but only by 8 days and 12 days respectively.

5. The power of the Court to allow the proceedings to continue, notwithstanding the failure to lodge an objection within the requisite 90 day period is found in s 66(3) of the Compensation Act. That section allows the Court to hear and dispose of the claims provided it is satisfied that there is good cause for the person’s failure to lodge the objection within the required 90 day period.

6. In order to establish good cause within the meaning of s 66(3) reliance is placed upon the affidavit evidence of the solicitor acting for the applicants in each proceeding. That affidavit evidence establishes that although Ms Williams, the applicants’ solicitor, received instructions within the 90 day period, difficulties were experienced in two ways. First, David Wiskich was apparently extremely ill and thus the capacity to receive instructions from him and to have him sign relevant documents was not readily achievable. In fact he was not available at all on or about the time at which the 90 day period was about to expire.

7. Secondly, Ms Williams had placed great reliance upon the valuer who had been retained by the applicants to provide valuation advice and evidence in connection with these proceedings. In her several affidavits, Ms Williams describes in some detail the difficulties that she has experienced in obtaining from that valuer sufficient information to enable her to complete the applications to this Court, identifying both the quantum and basis upon which compensation is proposed to be sought. Indeed, in an affidavit filed in Court today she has stated that while some information has been provided by the valuer, his promise to complete the information required remains outstanding.

8. The expression “good cause” as used in s 66(3) of the Compensation Act is not defined in that Act. In the context of the subsection, the good cause about which the Court is to be satisfied is directed to the failure to lodge an objection to an offer of compensation within the requisite period of 90 days. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure to have commenced proceedings within that time (Sydney Nationwide Realty Pty Ltd v Sydney Metro; IAE EDU Net Pty Limited v Sydney Metro [2011] NSWLEC 19; 210 LGERA 202

9. As I observed in Leclercq v Essential Energy [2015] NSWLEC 50, while the focus will be upon the conduct of an applicant during that 90 day period, other considerations may be relevant to the adequacy or sufficiency of explanation that is offered in order to persuade the Court to exercise the discretion provided under s 66(3). In principle these other factors will include the length of time by which the 90 day period is exceeded, prejudice to the respondent occasioned by delay and demonstration on the part of an applicant of an arguable case justifying continuation of the proceedings. The last factor is unlikely to present a difficulty to an applicant in the position of the present applicants, given the statutory entitlement to have compensation determined by the Court when the offer of the acquiring authority is not accepted.

10. I am satisfied that good cause has been shown. The period by which the 90 day period was exceeded is indeed very short. As I have mentioned, it can be counted in only a number of days. Further, no prejudice is claimed on the part of the respondent by reason of that delay. That position is understandable, given the very short time by which the period is exceeded. Further, the circumstance in which the commencement of proceedings was delayed outside the requisite period is explainable from the evidence of Ms Williams. While it may be that greater diligence and attention to the statutory provisions would have assisted the applicants in commencing their proceedings in a timely way, Ms Williams was hampered, first by the illness of David Wiskich and secondly, by the inattention, so it seems, of the valuer retained by her clients to provide information which she sought properly to asses the claim in order to ensure that there was an arguable case to be had.

11. These matters, coupled with the absence of prejudice to the respondent and the relatively short period by which the time was exceeded, seem to me to satisfy the requirement that good cause has been shown.

12. For these reasons I make the following determination:

1. Being satisfied that good cause has been shown by each of the applicants in each proceeding for their failures to lodge the present application within 90 days after receiving a compensation notice from the respondent, I determine the Court may proceed to hear and determine their respective claims for compensation.

2. Grant leave to the applicants in each proceeding to amend their respective applications filed on 18 December 2015 by substituting the name of the respondent as Roads and Maritime Services for Camden City Council.

3. Grant leave to the applicants to file an amended application in respect of the Schedule of Disturbances and Loss and otherwise to amend the application in accordance with the amended application annexed to the affidavit of Cherly Ann Williams affirmed 31 March 2016 at pp 36-67.

4. Orders and directions in accordance with the Short Minutes of Order initialled by me and filed with the papers.

5. Grant leave to the parties to approach the Registrar by eCourt not later than 4.30pm on Monday 4 April 2016 in order to obtain a date for a s 34 conference to be held before 29 June 2016.

6. Note the proceedings are next listed for directions on Friday 1 July 2016.

**********

Decision last updated: 06 April 2016